In a comment filed this week on the Mine Safety and Health Administration’s (MSHA) Proposed Rule Pattern of Violation (PoV), the American Society of Safety Engineers (ASSE) declared its opposition to certain enforcement actions in the rule.

The PoV rule is intended to strengthen MSHA’s ability to find a recurring pattern of violations in a mine and require heightened oversight.

While ASSE President Darryl C. Hill said the rule does contain some important provisions, his group is opposed to the inclusion of enforcement actions that have not reached final action and to any requirement that MSHA approva a mine’s safety and health program.

In a letter sent to Assistant Secretary of Labor for MSHA Joseph A. Main, Hill said ASSE members support portions of the rule that allow MSHA the flexibility to identify mines with a recurring pattern of violations and justify a higher degree of oversight. “ASSE believes the direction MSHA proposes to to strengthen transparency and open access to POV information is positive in allowing operators, miners, families and interested groups access to a mine’s performance,” according to a society statement. ASSE also supports expanding the adjudicated actions to be included in determining POV status.

However, ASSE does not support including enforcement actions that have not reached final action in order to determine POV status and opposes eliminating the existing requirement that only citations and orders that have become final are to be used to identify mines with a potential POV.

“Our members are fundamentally opposed to the idea that a mine operator, the vast majority who have a well meaning intent to have safe and healthy mines, could under any circumstances be considered guilty of a citation without the opportunity to contest that citation fully,” Hill said. “Safety and health professionals dedicate considerable resources in working with MSHA directly to help see that a mine adheres to MSHA standards. More often than is commonly understood, the actions our members need to take in response to MSHA’s concerns are an effort to address situations that are not violations under the standards and are questionably beneficial to a mine’s safety effort.”

Hill also noted that ASSE is concerned with the open-ended nature of important issues in the proposed rule such as there being no criteria for the numbers of citations, orders and elevated actions that would trigger POV status and allowing ‘other information that demonstrates a serious health or safety management problem at the mine such as accident, injury or illness records’ be considered. Regardless of how broadly Congress may have intended for MSHA to develop POV criteria, Hill wrote, there is no suggestion that the criteria go beyond ‘pattern of violations’ to a ‘pattern of injuries and illnesses’.

Hill noted that requiring operators to develop a safety and health program simply to meet outside requirements trivializes a safety and health program, noting that a safety and health program only works if the mine operator and miners are involved in its development and implementation. Instead, Hill added, ASSE would support the development of expertise in MSHA staff to work cooperatively with mine operators nearing POV status to develop their safety and health programs. Anything short of such a measure demeans the value of a safety and health program, Hill added.